Commonwealth v. Rogers

Greaney, J.

(dissenting). The touchstone of any case like this is the reasonableness of the police conduct. If the conduct viewed objectively is reasonable, the police have violated no right, constitutional or otherwise. See Commonwealth v. Sanna, 424 Mass. 92, 98 (1997); Commonwealth v. Cantalupo, 380 Mass. 173, 178 (1980). The conduct of the Springfield police here was eminently reasonable, and the court, in failing to recognize it as such, has strayed from acceptable norms.

Officer Ellsworth was called on to investigate a crime reported at 4:40 a.m. by a woman (Lucy Dysili) who, in great distress, informed him that she had gone to “Danny’s apartment in order to buy crack cocaine” and that “Danny” and “Rose” had assaulted her there. Officer Ellsworth knew that (a) “Danny” was the defendant; (b) “Rose” was a woman he previously had seen in the defendant’s company and at the defendant’s apartment; (c) the reported assault had occurred in the defendant’s apartment only two and one-half blocks from *248where he and Dysili then stood; and (d) he (Officer Ellsworth) had been to the defendant’s apartment at least ten times in the past year in response to complaints about drugs, fights, and prostitution. He could reasonably infer from Dysili’s statements that “Rose” and the defendant were actually in the apartment at that time selling cocaine. In these circumstances, the police would have been derelict in their duty to leave Dysili’s report unattended to while they fretted over the need to get a warrant or to do something else to gain “official” entry into the defendant’s apartment. Crimes, such as occurred here, tend to be evanescent and they will “go by the boards,” if not immediately responded to.1

Officer Ellsworth, now accompanied by two other uniformed officers, knocked on the defendant’s door, and it was opened by a woman he recognized as “Rose.” Rose responded to his inquiry as to the defendant’s whereabouts (“Where’s Danny?”) by stepping back from the doorway and pointing toward the rear of the apartment.2 Two other unidentified individuals who were present in the living room also pointed in the same direction. Officer Ellsworth and one other officer proceeded, as directed by Rose, to the kitchen. There, they found the defendant seated at a table on which lay, in plain view, a large pile of crack cocaine and some heroin. Marijuana lay on a nearby shelf, also in plain view.

The court wisely stays away from the issue of authority. Officer Ellsworth knew that Rose was not just a casual guest of the defendant. He testified at the motion hearing that he had seen the defendant and Rose together and had seen her “coming to and from” the defendant’s apartment. Officer Ellsworth had every reason to believe that Rose was aiding the defendant in selling cocaine from that apartment. One cannot think of a more direct connection to the premises. Moreover, the defendant *249concedes that no search was involved and that the challenged consent to enter was limited to the kitchen, an area where visitors normally would be received. In such circumstances, “[t]here is sound authority that, at least when the [individual who consents] is more than a casual visitor and ‘had the run of the house,’ [her] lesser interest in the premises is sufficient to render that limited consent effective.” 4 W.R. LaFave, Search and Seizure § 8.5(e), at 235 & n.117 (4th ed. 2004), citing United States v. Turbyfill, 525 F.2d 57 (8th Cir. 1975); Nix v. State, 621 P.2d 1347 (Alaska 1981); People v. Shaffer, 111 Ill. App. 3d 1054 (1982); State v. Thompson, 578 N.W.2d 734 (Minn. 1998).

Officer Ellsworth’s entry also was justified by the doctrine of apparent authority, under which consent is judged against an objective standard: “[W]ould the facts available to the officer at the moment . . . ‘warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises?” Illinois v. Rodriguez, 497 U.S. 177, 188 (1990), quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968). See Commonwealth v. Ortiz, 422 Mass. 64, 70 (1996); Commonwealth v. Wahlstrom, 375 Mass. 115, 118 (1978). It was reasonable for Officer Ellsworth, who had called on the defendant at his apartment several times in the past and once had been' let into the apartment by a woman, to assume that Rose was part of the defendant’s operation and could authorize him to enter the apartment to speak with the defendant. Rose, after all, took it upon herself to answer the defendant’s door at approximately 5 a.m. By all accounts, her response to his question as to the defendant’s whereabouts was spontaneous and immediate, and she gave no outward indication that she was uncertain as to whether she should, or should not, admit the officers. The ques-tian then becomes whether Rose actually consented to the entry.

Consent as the basis for a warrantless entry must be “unfettered by coercion, express or implied, and also something more than mere ‘acquiescence to a claim of lawful authority.’ ” Commonwealth v. Voisine, 414 Mass. 772, 783 (1993), quoting Commonwealth v. Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976). Whether a particular consent was voluntary “is a question of fact to be determined from the totality of all the circumstances.” Commonwealth v. Gaynor, 443 Mass. 245, *250253 (2005), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). The judge made an implicit finding in this case that the Commonwealth’s evidence demonstrated, by a preponder-anee of the evidence, see Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976), that Rose’s consent was voluntarily and freely given. Had the defendant adequately raised this theory of suppression at the hearing, the judge undoubtedly would have provided more detailed findings regarding the issue of voluntariness.3 As it is, however, there is ample evidence in the record to permit a determination that the Commonwealth has met its burden on this point.

The officers were in uniform and did not try to conceal from Rose, or the others in the apartment, their identity or their purpose. See Commonwealth v. Burgess, 434 Mass. 307, 310 (2001). When Officer Ellsworth asked Rose where he could find the defendant, she did not object, turn away, or call the defendant to the door. She (as well as two other individuals) instead pointed toward the kitchen and stepped back, thereby communicating to Officer Ellsworth that he should enter and proceed in the direction in which she pointed. Although permission to enter was demonstrated by a gesture rather than verbal invitation, it was, in these circumstances, neither ambiguously or equivocally conveyed. See Commonwealth v. Voisine, supra at 783 (consent to enter valid when communicated by pointing in direction of bedroom); Commonwealth v. Cantalupo, 380 Mass. 173, 177 & n.3 (1980) (explicit gesture of opening jacket indicated consent to search). See also United States v. Walls, 225 F.3d 858, 862 (7th Cir. 2000) (“It is well established that consent may be manifested in a non-verbal as well as a verbal manner . . . and [the defendant’s] action in opening the door and stepping back to allow the entry was sufficient to convey *251her consent in these circumstances”). Moreover, it may be inferred (from the absence of any findings to the contrary) that as Officer Ellsworth stepped into the apartment and proceeded toward the kitchen, neither Rose, nor any of the other individu-ais who were present in the living room, gave any sign that he should not enter or otherwise moved to stop him. See Commonwealth v. Maloney, 399 Mass. 785, 787 (1987).

This is not a case where consent to enter is merely “an acquiescence to a claim of lawful authority.” Officer Ellsworth specifically asked where he could find the defendant, thus expressly conveying to Rose his wish to speak with the defendant. Rose, in response, did not merely turn away from the open door, but pointed toward the defendant and stepped back to allow the officer to enter the apartment. Contrast United States v. Shaibu, 920 F. 2d 1423 (9th Cir. 1990) (finding ambiguity when occupant, who had met officers in hallway, turned away and walked back into apartment). Rose, quite obviously, was aware that the police visit to the apartment at 5 a.m. was not a social call. The officers used no trickery or otherwise attempted to dissuade her from resisting entry. Nor did they attempt to frighten or intimidate. Contrast Commonwealth v. Harmond, 376 Mass. 557, 558, 562 (1978) (consent involuntary when defendant handcuffed and guarded by one or more police officers anxious to locate weapon); United States v. Edmondson, 791 F.2d 1512, 1514 (11th Cir. 1986) (finding coercion when Federal agents yelled, “F.B.I. Open the door”). No weapons were drawn. The court’s professed inability to infer consent in this case is an expression of judicial surrealism.

The principle that police may not make a warrantless entry into a suspect’s home in the absence of exigent circumstances or consent is firmly rooted in Fourth Amendment jurisprudence and strictly adhered to in all of our cases. See Commonwealth v. Sanna, supra at 96-97 & n.9. This case is emphatically not about whether police entry into the home may be deemed consensual, despite the presence of express or implied official coercion or the absence of any outward manifestation of consent. My point of difference with the court concerns whether the evidence in the record, examined as a whole, supports the judge’s implicit determination that consent was given by Rose *252freely and voluntarily. Some of the very cases highlighted by the court to demonstrate that Rose’s consent was not “sufficiently voluntary to comply with the requirements for a war-rantless search,” ante at 241-243, when examined on their facts, contain indicia of coercion far more blatant than the subtle possibilities discerned by the court in this case. The cases, therefore, are a weak platform to support the arching conclusions the court attempts to draw from them, and they point forcefully to justify the lawfulness of what occurred here. In Commonwealth v. Sanna, supra, for example, we concluded that a father’s invitation to police officers to enter his home to speak with his son was not coerced, even though (1) the officers lied about the true purpose of their visit (to arrest the son), (2) the officers had parked their unmarked cruiser behind the father’s automobile, thus physically preventing him from driving away, and (3) a number of additional officers (presumably armed) were stationed in areas surrounding the house, ready to effectuate the arrest. See id. at 94 n.l, 97-98 & n.10. And, in Commonwealth v. Voisine, supra at 776, a woman opened her apartment door to find five or six police officers, all with weapons drawn. In spite of undisputed evidence of what can only be deemed an intimidating show of force (certainly sufficient, according to the court’s reasoning, to overcome any subsequent consent to enter), we concluded that the woman’s hand gesture, silently pointing in the direction of the bedroom where the defendant was hiding, indicated her voluntary consent to the officers’ entry.

The facts of Commonwealth v. Walker, supra, present an even more dramatic contrast to the facts of this case. There, a “contingent” of police officers sought entry into the apartment of the defendant’s fiancée. The officers surrounded the ground-floor apartment, knocked loudly on the door, and demanded entry. The officers attempted to enter the apartment door using a passkey, but “it was not until a bolt on the inside of the apartment door was released by [the defendant’s fiancée] that the police actually found themselves inside.” Id. at 552. The court recognized that the situation was fraught with tension and fear (“There was talk of guns by the defendant [and a] shootout seemed imminently possible,” id. at 555), but attributed the fear entirely to the defendant’s conduct, which was “unknown to the *253police at the time they sought entry into the apartment.” Id. at 556. In reaching its conclusion that the judge was warranted in determining that consent to the officers’ entry was freely and voluntarily given, the Walker court attached no importance to, indeed did not even address, the officers’ failure to request permission before entering the apartment. Read in tandem with today’s opinion, the Walker court’s silence on this matter, heretofore unremarkable, appears to be a rather glaring omission. See Commonwealth v. Buchanan, 384 Mass. 103, 107 (1981) (gesture of opening door was “election of free choice” by individual who had sufficient experience to know she could insist on warrant, despite being informed by police officers that they “would remain outside the door and that she might be charged if they found [the suspect] inside the apartment”); United States v. Ramirez-Chilel, 289 F.3d 744, 751-752 (11th Cir. 2002), cert. denied, 537 U.S. 1114 (2003) (at midnight, four law enforcement officers, identifying themselves in Spanish, knocked on door of trailer where suspect lived with girl friend and two small children, and, after suspect “yielded the right-of-way,” entered home; entry was consensual because “no official show of force which would have ‘forced’ the defendant to let the officers in”). Cf. Commonwealth v. Kipp, 57 Mass. App. Ct. 629, 631-632 (2003) (apartment search consensual, despite defendant, who was in custody, being told that police “would apply for a search warrant [and] if they searched pursuant to a warrant, they would damage the apartment; if, however, the defendant consented to a search, the police would show a little courtesy and not be destructive; and, if drugs were found on the premises, the defendant’s wife would also be arrested”).4

The court departs from established principles when it speculates that Rose might have misinterpreted Officer Ellsworth’s question “as an expression of the officers’ intention *254to enter the defendant’s home, regardless of [her] response” and that Rose “probably did not know at the time she pointed whether the officers merely intended to question [the defendant], or whether they came to arrest him or search the home.” The court implicitly articulates, for the first time today, a heightened constitutional standard to evaluate the validity of a consensual warrantless entry. To succeed under the court’s test, the Commonwealth must demonstrate, with affirmative evidence, both that the police request to enter was not misunderstood as a demand to enter and that the presence of police (regardless of the officer’s objectively manifested intentions) could not have been misconstrued as an assertion of official authority. Such evidence ordinarily will not be forthcoming in the absence of an explicit warning of the right to refuse consent, a warning we have repeatedly stated is not necessary. See Commonwealth v. Voisine, supra at 783; Commonwealth v. Buchanan, supra at 106-107; Commonwealth v. Harmond, 376 Mass. 557, 561 (1978), quoting Commonwealth v. Walker, supra at 555; Commonwealth v. Aguiar, 370 Mass. 490, 497 (1976).

The question what standard of proof is required, under the Fourth and Fourteenth Amendments to the United States Constitution, to demonstrate that a consent to search was voluntarily given, was considered by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The Court concluded that a heightened burden of proof, such as the one necessary to prove a “ ‘knowing and intelligent’ waiver” (see Johnson v. Zerbst, 304 U.S. 458, 464 [1938]), is neither required nor appropriate and held that the traditional test of vol-untariness used for police questioning suffices. See Schneckloth v. Bustamonte, supra at 248-249. The Court suggested that requiring the prosecution to meet a higher standard “would, in practice, create serious doubt whether consent searches could continue to be conducted.” Id. at 229. As a practical matter, the Court reasoned, “[i]t would be unrealistic to expect that in the informal, unstructured context of a consent search, a policeman, upon pain of tainting the evidence obtained, could make the detailed type of examination demanded [to prove a ‘knowing *255and intelligent’ waiver].” Id. at 245.5 Society has a substantial interest in the continuation of consent entries, and our reaffirmation of the authority of police officers to enter a home without a warrant, when someone with authority to do so consents to the entry, in circumstances, as here, that are untainted by evidence of police coercion or other abuse of authority, would not in any way undermine society’s (and our) interest in the sanctity of the home.

Rose, admittedly, did not know the identify and purpose of the callers before she opened the door. Her actions once she became aware that the police at the door were intent on speaking with the defendant, however, were constitutionally as *256adequate a consent as if she had verbally invited them to come inside. See Commonwealth v. Voisine, supra at 783; United States v. Ramirez-Chilel, supra at 752 (body language demonstrated “implied consent to enter”); Robbins v. MacKenzie, 364 F.2d 45, 48 (1st Cir.), cert. denied, 385 U.S. 913 (1966). Officer Ellsworth asked Rose where he could find the defendant. There was no need to take the time specifically to ask permission to enter or to explain to Rose her right to refuse his entry. See Commonwealth v. Voisine, supra; Commonwealth v. Harmond, supra; Commonwealth v. Aguiar, supra. The visit did not take place in the middle of the night, and no one was roused from bed. Moreover, the officers went to the defendant’s apartment in immediate response to Dysilli’s report of a violent crime that had, allegedly, just been committed by the defendant and Rose. Rose and the others undoubtedly knew that “the jig was up,” but even this knowledge does not automatically preclude a finding of voluntary consent. See Commonwealth v. Harmond, supra at 562, citing United States v. Ciovacco, 518 F.2d 29, 31 (1st Cir. 1975). After all, the police were not seeking entry to high tea at the Ritz. They were there to deal with serious crimes that had just been reported, and in Rose and the defendant, they were dealing with two veterans of police encounters.

The court rejects the compelling facts, choosing instead to construe the facts to create a false ambiguity, then to analyze what occurred hypertechnically to arrive at a conclusion that defies common sense.6 There was nothing untoward or inap*257propriate about the officer’s entry into the apartment and subsequent presence in the kitchen where, the defendant concedes, cocaine, marijuana, and heroin lay in plain sight. Stationing an officer outside the door, while attempting at 5 a.m. in the morning to obtain a warrant, would have been an unnecessary drain on the already meager resources of the Springfield police. The evidence was lawfully seized without a warrant, and the defendant’s motion to suppress should have been denied. I, therefore, dissent.

This proposition is not an effort, as the court suggests, to demonstrate that the police entry was justified by probable cause and exigent circumstances. The factually compelling circumstances underscore the reasonableness of the police officers’ immediate response, which led (as next discussed) to Rose’s lawfully allowing them into the defendant’s apartment.

Officer Ellsworth testified that Rose “took a step back” from the doorway as she pointed to the kitchen. Although the judge made no findings regarding this testimony, the defendant, in his brief, concedes its accuracy.

“There is no reason for the Commonwealth to extend unnecessarily the length of the suppression hearing by presenting evidence on issues not raised by the defense. When a defendant attempts to raise a new issue after the completion of the hearing’s evidentiary phase, the evidence on that issue is likely to be ‘scant’ or nonexistent.” Commonwealth v. Silva, 440 Mass. 772, 781 (2004). This is one primary reason that the grounds on which a suppression motion is based must be stated with particularity in the motion and accompanying affidavit or, otherwise, be deemed waived. See Mass. R. Crim. R 13 (a) (2), 378 Mass. 871 (1979).

The facts of this case bear no similarity to those in another case cited by the court, Bumper v. North Carolina, 391 U.S. 543, 549-550 (1968), in which four white law enforcement officers falsely asserted to a suspect’s African-American grandmother that they had a warrant to search her home. There can be no disagreement with the conclusion of the United States Supreme Court that the elderly woman’s response, “Go ahead,” in obedience to the officers, was not, in fact, freely and voluntarily given. See id.

As stated above, the issue before the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), was “what must the prosecution prove to demonstrate that a consent was ‘voluntarily’ given.” Id. at 223. The Court reasoned that the standard for effective consent for police searches, as with police questioning, must be sufficiently flexible to accommodate two competing concerns: “the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.” Id. at 227. In ultimately rejecting the strict standard of voluntariness applied to the waiver of rights guaranteed a criminal defendant at trial, the Bustamonte Court stated, “The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial.” Id. at 242. The Court further stated:

“Nor can it even be said that a search, as opposed to an eventual trial, is somehow ‘unfair’ if a person consents to a search. While the Fourth and Fourteenth Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person’s voluntarily allowing a search. The actual conduct of tile search may be precisely the same as if the police had obtained a warrant. And, unlike those constitutional guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment.”

Id. at 242-243.

This court’s repeated citations to language in the Bustamonte decision are curious, given the generally recognized import of the Supreme Court’s holding. See 4 W.R. LaFave, Search and Seizure § 8.2, at 51 (4th ed. 2004) (“there is reason to be concerned about the [Bustamonte] holding”). According to Professor LaFave, commentators have severely criticized the Bustamonte standard of voluntariness as “ineffective,” “unworkable,” and “unpredictable.” See id. at 51-55 & nn. 7-9, quoting Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 57 (1974); Stuntz, Privacy’s Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1064 (1995); Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 212 (2001).

The court’s rejection of my initial premise that “[t]he touchstone of any case like this is the reasonableness of the police conduct” is difficult to comprehend. The Fourth Amendment to the United States Constitution proscribes unreasonable searches and seizures. Because the police acted reasonably under the circumstances, their conduct did not offend either the Fourth Amendment or art. 14. See Scott v. United States, 436 U.S. 128, 138 (1978); Commonwealth v. Catanzaro, 441 Mass. 46, 58 (2004); Commonwealth v. Santana, 420 Mass. 205, 208 (1995); Commonwealth v. Phillips, 413 Mass. 50, 54-55 (1992). See also 4 W.R. LaFave, supra at § 8.1(b), at 18-19 (addressing concept that Fourth Amendment is concerned with discouraging unreasonable activity on part of police officers and, thus, is not violated when search is conducted with reasonable belief that voluntary consent has been granted). The United States Supreme Court has stated the same concept, in connection with the doctrine of apparent authority to consent: “[I]n order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that *257must regularly be made by agents of the government ... is not that they always be correct, but that they always be reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).